Metropolitan Life Ins. Co. v. Ray

• Decision Date: 09 April 1937
• Docket Number: No. 5028.,5028.
• Citation: 105 S.W.2d 377
• Parties: METROPOLITAN LIFE INS. CO. v. RAY.
• Court: Texas Court of Appeals

Page 377

105 S.W.2d 377

METROPOLITAN LIFE INS. CO. v. RAY.

No. 5028.

Court of Civil Appeals of Texas. Texarkana.

April 9, 1937.

Rehearing Denied April 15, 1937.

Error from District Court, Bowie County; N. L. Dalby, Judge.

Action by Florine Ray against Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Leake, Henry & Young, Hawkins Golden, and Harry M. Stanfield, all of Dallas, and Keeney & Moseley, of Texarkana, for plaintiff in error.

Wm. V. Brown, of Texarkana, for defendant in error.

JOHNSON, Chief Justice.

This suit was filed by defendant in error, Florine Ray, the surviving wife of Lillian Ray, deceased, to recover upon a contract of insurance evidenced by a group policy issued upon the application of the Texas & Pacific Railway Company, and a certificate of insurance issued thereunder upon the application of Lillian Ray, as employee of the Texas & Pacific Railway Company, whereby plaintiff in error, defendant below, Metropolitan Life Insurance Company, as insurer, promised to pay Florine Ray as beneficiary the sum of $1,000 upon the death of insured, Lillian Ray, if "caused directly and independently of all other causes by violent and accidental means."

The insurer defended the suit upon the ground that the death of Lillian Ray was not caused by "accidental means" in that, it is alleged by defendant, Lillian Ray at the time of his death was attempting to burglarize a box car belonging to the Kansas City Southern Railway Company. It was the contention of insurer, defendant below, that justifiable homicide, though not among the risks expressly excepted in the policy, is, as a matter of law, a death not caused by "accidental means."

On trial of the case it was shown without dispute that Lillian Ray met instant death on the night of December 19, 1934, just off the right of way of the railroad yards of the Kansas City Southern Railway Company in the city of Texarkana, Tex., as the result of being shot in the back of the head by and while running from a special officer of the Kansas City Southern Railway Company.

The defendant introduced testimony of circumstances tending to show that immediately before he was killed, Lillian Ray had attempted to burglarize a box car belonging to the Kansas City Southern Railway Company. The trial court submitted the issue, accompanied by definitions, to the jury — and the jury answered — as follows:

"The offense of burglary is constituted by entering a house by force, at any time, with the intent of committing a felony or the crime of theft.

"`A house,' within the meaning of the foregoing definition, is any building of any public or private corporation or association, or of any individual, and of whatever material it may be constructed, and you are instructed that a railroad box car is a house, within the meaning of this definition.

"An attempt to commit a burglary is an endeavor to accomplish that crime carried beyond mere preparations, but falling short of the ultimate design in any part of it.

"All persons are principals who are guilty of acting together in the commission of an offense.

"You are the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given their testimony; but you will receive the law from the court, which is herein given yon, and be governed thereby.

"Bearing in mind the foregoing definitions, you will answer the following special issues.

"Special Issue No. 1: Do you find from a preponderance of the evidence that immediately before the insured, Lillian Ray, was shot and killed, that he or that he and some other negro had attempted to burglarize a box car of the Kansas City Southern Railroad, as the term, `attempt to burglarize,' has been heretofore defined to you.

"Answer `Yes' or `No.'

"Answer: `No.'"

Upon the verdict of the jury and the undisputed facts of the case the court entered judgment for plaintiff. From an order of the court overruling its motion for new trial, the defendant has appealed by writ of error.

By its first proposition plaintiff in error attacks the action of the trial court in refusing its motion for a directed verdict and in refusing its motion for judgment non obstante veredicto, and presents the contention that the verdict of the jury is without support in the evidence, in that, it is contended, the uncontradicted testimony shows that Lillian Ray immediately before he was shot and killed was attempting to burglarize a box car. The testimony bearing upon the issue is as follows: E. B. Murrell, for defendant below, testified:

That at the time he shot and killed Lillian Ray, about seven p. m., December 19, 1934, he, witness, was employed by and as a special officer of the Kansas City Southern Railway Company — holding a Texas Ranger commission; that a part of his duties was to patrol the yards of the Kansas City Southern Railway Company.

"Q. I wish you would just tell the jury what happened regarding his death, and leading up to it. What time did you go to work that day? A. Well, I worked all day, but I went down in the yards about 6:45 or 6:30, or somewhere between 6:30 and 7:00. We had a car of tobacco, a box car, sealed on both sides, that had been set in the K. C. S. yards on track No. 1, at what we call the north end of the yard, and there was four or five cars of cinders setting on what is known as the Casket track. That is about four tracks over from the car of tobacco, and about five or ten minutes to seven, — it was after dark — just good dark, there was a car same — I was laying over behind the car of cinders, that is, they were between me and the car of tobacco. There was a car come down to the ditch that is on the east side of the K. C. S. yards, and stopped, and stood there a minute and went on.

"Q. What kind of car? A. An automobile. I don't know what kind, but from the reflection of the lights I could tell it was either a coach or sedan, but could not tell the make of it, and in about a minute and a half there was two negroes came up across the yards from the east; that is, came from the direction of where the car stopped, and one of them — they went to the end — stopped close to the end of the tobacco car, the box car containing tobacco, — and said nothing. I don't know what they said, and couldn't hear them, but it looked like they stopped and made some motion or sign, and one of them came on over to the car of cinders, and he started looking around under the car, to see if he could see any one, I suppose, and the other one went to the box car that had the cigarettes in it, and he reached up to do something to the hasp. I could just see his form; I could not tell what he did, or anything, and about that time the other negro that came over to the car of cinders, — he had looked under them and didn't see any one, and he came around an end and looked down behind them, between the cars of cinders and the Casket Factory fence. I was standing just around the end of the north car of cinders. When this negro saw me I told him to step back there and be quiet, and he ran, and he ran back by the car — toward the car where the other negro was, and then the other negro left the car containing the cigarettes, and they began to run together. I could not tell which negro was which after that, and I hollered at them to halt, two or three times, and shot in the ground three or four times, and neither one stopped, and finally they got across the ditch, (off the railway right of way) which was about 65 or 70 yards from the box car, or possibly further. I was running with them all the time, trying to stop them, and I told them who I was. I saw they were going to get away, and I thought I would stop one of them and I shot at one of them and killed him."

Witness further testified that he did not know Lillian Ray at the time, but later learned his name; that Lillian Ray was not in the employ of the Kansas City Southern Railway Company at that time; that he was an employee of the Texas & Pacific Railway Company in the capacity of trucker at its warehouse. Witness further testified that when he got back to the box car in question the seal was broken. He did not state when or how long after the killing he examined the box car, nor when, if at any time, he had examined the car previous to the killing. On cross-examination the witness testified that people go through the railroad yards at the place in question, where the box car was located, at all hours of the night; that it is not unusual to see people going through there at 7 o'clock; that a lot of people work in town and walk through there every morning and night; that lots of people after supper go to the picture shows and on legitimate business through the yards.

Claude Murrell, witness for defendant, testified that he was not an officer, but that he was with his brother, E. B. Murrell, at the time E. B. Murrell killed Lillian Ray; that witness was standing at one end of the box car of cinders and his brother was at the other end; that the tobacco car was out in front of them; that he was a little further from the tobacco car than his brother.

"Q. Did you or not see anybody fooling with the seal or the hasp on the car? A. Well, from where I was I saw the two negroes as they came up; as they came up to the end of the box car and then in the shadow of the box car — I could not see — it just cut me off from the box car, because the shadow of the car made it so dark I couldn't see nowhere. I just saw the two negroes at the end of the car."

It will be noted that the facts testified to are circumstantial in character of evidence, from which it is sought to establish the ultimate facts that the negroes had (1) broken a seal of the car, and (2) with the intention of entering and stealing tobacco therefrom — the offense of attempt to commit burglary. The circumstances which will amount to sufficient proof of an ultimate fact is not a matter of general definition. "The only...